#### Kitty Roup’s Case.

1. The power to classify the subjects of taxation is not taken away from the legislature by the new constitution.

2. The provision, Art. IX, sect. 1, in the new constitution, that all taxes shall be uniform on the same class of subjects within the territorial authority levying the tax, etc., is merely declaratory of the law as before the adoption of the constitution. *Per Collier, J.*

3. Where the legislature has determined what lands belong to several classes, the courts cannot declare the act void unless the violation of the constitution be so clear, plain, and palpable as to preclude doubt or hesitation. *Id.*

4. Unless the constitution plainly makes void an act of Assembly, the constitution acts prospectively, not retrospectively. *Id.*

November 7th, 1874.

Before Agnew, C. J., Sharswood, Williams, Merour, aud Gordon, JJ.

Appeal from the Court of Common Pleas of *Allegheny County.*In Equity. Of October and November Term, 1874, No. 234.

The bill in this case was filed June 21st, 1874, by Kitty Koup against the city of Pittsburgh, and Christopher L. Magee, treasurer of the city ; the bill set out,

1-2. The Consolidation Act of April 6th, 1867 (Pamph. L., 846\ extending the boundaries of the city of Pittsburgh, submitting the question to a vote of the people; and the vote on the 10th of October, 1807, determined in favor of consolidation.

8. By the 6th section of the act, the assessors in returning real estate were to note on the margin of their books the *212word “ rural ” opposite property used for agricultural purposes ; the property so marked to be assessed at but two-thirds the rate for city taxation.

4. Another act was passed April 1st, 1868 (Pamph. L., 565), by the 19th section of which so much of the 6th section.of the Consolidation Act as pi’ovides for marking certain real estate “ rural ” was repealed, and it was enacted that all real estate within the district of Oakland — Pitt, Peebles, Liberty, and Collins, townships — shall be marked “ rural,” and shall be assessed at the rate of two-thirds of the city taxation.

5. The plaintiff was the owner of a farm or tract of agricultural land containing about 100 acres in Liberty township.

6. On .the 27th of February, 1874, the councils of Pittsburgh passed an ordinance assessing taxes for 1874 in the aforesaid district and townships, including Liberty, or prop- : erty marked “ rural,” at the full rate of city taxation.

* * * * * . -t *

8. The defendants refused to receive from plaintiff on her farm above mentioned two-thirds of the city taxation, and threaten, etc., to proceed to collect the full rate of taxation. The prayers were:

That the ordinance so far as it assessed more than two-thirds of city taxation on property marked “ rural ” in the above-mentioned district and townships b'e adjudged null and void; that the defendants be restrained from collecting from the plaintiff more than two-thirds of the city taxation; that the treasurer be decreed to accept from her two-thirds of the city taxation in full of her taxes for 1874; and for further relief.

Should the Court be of opinion that the constitution had abrogated the acts relating to city taxation in the above-mentioned district and townships, that the defendants be restrained from collecting any portion of city taxes imposed on her land by the ordinance.

The answer of defendants admitted that all the averments in the bill were true ; but they averred that the plaintiff’s land was vacant rather than agricultural land, and they were informed and believed that the land is laid off in a plan of city lots, of which a number are sold'; and that within the said district and townships termed “ rural',” thei’e was improved property of the’same character as that not embraced in rural districts, viz , blocks of dwelling-houses and stores with paved streets, and supplied with water by the city waterworks, and that within the “ other real, estate,” not embraced in the “ rural ” territory, there are tracts of unim*213proved agricultural land or land like that owned by the plaintiff'.

The Court granted a preliminary injunction, Collier, J, delivering the following opinion:

“This is a motion for a preliminary injunction against the defendants, to restrain them from collecting more than two-tliirds of the rate of taxation levied and assessed by an ordinance of the city of Pittsburgh, enacted and ordained-on the 27th day of February, 1874.

“ By the act of the legislature, passed the 6th day of April, 1867, commonly known as the Consolidation Act, it was made the duty of each assessor to mark in his book, opposite the property of each taxable ysed for *agricultural*purposes, the word ‘ rural; ’ and the act declared ‘ that upon any property so returned, there shall be assessed and collected *only two-thirds*of the rate for city taxation that shall be assessed and collected upon other real estate within the said city.’ By virtue of the provisions of this act, the townships of Pitt, Oakland, Collins, Peebles, and Liberty (in the latter of which is the plaintiff’s land), became part of the city of Pittsburgh.

“ On the 1st day of April, 1868, the legislature passed another act, ‘ supplementary to an act incorporating the city of Pittsburgh,’ the 19th section of which repealed so much of the former act as made it the duty of assessors to mark agricultural lands as ‘ rural,’ and directed that ‘ all real estate,’ situated within the districts of Oakland, Pitt, Peebles, Liberty, and Collins townships, shall be marked ‘ rural,’ and there shall be assessed and collected thereon *two-thirds*of the rate of city taxation.

“Notwithstanding this act of the legislature, the city of Pittsburgh, in Select and Common Council assembled, has assessed and levied upon the plaintiff’s real estate, designated by this act as ‘rural,’ the full rate of city taxation levied and assessed on other real estate within said city, and the defendants threaten, unless restrained, to collect the full amount of said levy; and it is contended that the power, to do this arises under section 1, article IX, of the hew constitution, which says : ‘ All taxes shall be uniform, upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under general laws.’

“ This clause in the new constitution we regard as merely declaratory of the law as it stood prior to its adoption.

“ Both real and personal estate have been classified for the purposes of taxation for a long period in-the Common*214wealth. Real property has been classified for the purposes of municipal taxation into urban, rural, and marsh lauds, and for State purposes into seated and unseated. And every one is familiar with the numerous classes of subjects into which personal property is divided for the purposes of taxation, and the ordinance upon which the tax complained of in this case is levied, contains fifteen items of classification upon which a tax is assessed.

“ The legislature having, prior to the adoption of the new constitution, made a classification of the plaintiff’s lands, and marked them ‘ rural,’ that classification will have to stand until a new one is made by the proper authority; unless the legislature had no power to make it, or unless it is not uniform, or unless the new constitution, by its own force, has repealed the act.

“ That the legislature had power to make the classification we have no doubt. It is hardly an open question: Commonwealth *v.*Mann, 5 W. & A, 417; Serrill *v.*The City of Philadelphia, 2 Wright, 855 ; Durach’s Appeal, 12 P. P. Smith, 491.

“.Judge Sharswood, in Durach’s Appeal, says: ‘In the legitimate exercise of the power of taxation, persons and tilings always have been and may constitutionally be classified. To hold otherwise would logically require that all the subjects of taxation, as well persons as things, should be assessed, and an equal rate laid *ad valorem.*Practically no more unequal system could be contrived.’

“ Was the classification uniform? It is alleged in the answer to the bill (though denied in the injunction affidavit, as far as the plaintiff is concerned) that, there are in these districts marked ‘rural,’ blocks of dwelling-houses and stores, with paved streets, and supplied with water by the city •waterworks.

“ The legislature having determined what lands belong to the several classes, it is not competent for the courts to declare an act of Assembly void, unless its violation of the constitution was plain, clear, palpable, so as to preclude doubt or hesitation: Speer *v.*The School Directors, 14 Wright, 150; Kirby & Shaw, 7 Harris, 258.

has new repealed Act? think not.

“ The second section of the schedule preserves all laws in force at the adoption of the constitution ; and unless it was clearly expressed, we should not think it was the intention to interfere with the charter of the city of Pittsburgh as regards taxation. And this view is strengthened by reference to sections 21 and 22 of Article III, in which *215acts intended to be repealed or avoided are expressly so declared.

“ The case in 9th Wisconsin, so ably pressed on us by the learned counsel for defendants during the argument, seems to us .to be distinguishable from the present case. The constitutional limitation there was distinct and clear, and allowed no classification at yill of real estate for taxation purposes.

“ Unless the constitution in plain and unequivocal terms made void or repealed the act of Assembly, it would operate prospectively, and not retrospectively: Cooley’s Constitutional Limitation, page *62;*10 Ohio, 57; 7 Johnson, 499; 4 Mass., 303 ; Dwarris" on Statutes, 155; 2 P. F. Smith, 316.

“ But suppose the act was repealed by the constitution. Where would be the power to tax at all ? The power to tax these lands was given to the city in the 6th section of the charter of consolidation; and unless the power can be found somewhere else, no tax at all could be imposed.”

The defendants appealed to the Supreme Court, and assigned the decree granting the preliminary injunction for error.

*T. S.*Bigelow", *G. Sidras, Jr.,*and *G. P. Hamilton,*for appellants.

The 9th article, section 1, of the new constitution declares: “All taxes shall be uniform upon the same class of subjects, within the territorial limits of the authority levying the tax, and shall be levied and collected under, general laws.” Does this clause of the constitution abrogate the 19th section of the act of April 1st, 1868, requiring all real estate in Liberty township, etc., to be marked “ rural,” and assessed at two-thirds of city rates? The act of 1868 declares all the real estate in those townships to be marked “rural,” irrespective of its character; the act of 1867 required the assessor so to mark only such real estate as was used for* agricultural purposes. ¡Such act if now proposed would be in contravention of the constitution. Either real estate embi’aced within the city limits is one class of subjects within the authority levying the tax, or. if the legislature can divide land into classes the classification must be on some difference actually existing. If it is to be presumed that the legislature made the classification on a knowledge of the character of the lauds this would be but *prima facie*and might be disproved: Erie & N. E. R. R. *v.*Casey, 2 Casey, 287; Commonwealth *v.*Pitts, and O. R. R., 8 P. F. Smith, 26. The legislature cannot discriminate between lands lying within the limits of the authority: Knowlton *v.**216Supervisors of Rock County, 9 Wisconsin, 410; Cooley’s Constitutional Limitations, 501.

*M. W.*Acheson, *Hampton $*Dalzell, and *Bruce*Argley, for appellee.

The legislature may classify real estate for purposes of taxation: Durach’s Appeal, 12 P. F. Smith, 491; Serrill *v.*Philadelphia, 2 Wright, 355 ; Gillette *v.*Hartford, 31 Conn., 351. It is a serious 'question whether the legislature can extend the boundaries of a city so as to include agricultural lauds without the consent of the owners, and subject them to the full burden of city taxation: Covington *v.*Southgate, 15 B. Monroe, 492; Abogast *v.*Louisville, 2 Bust., 271: Sharp *v.*Donovan, 9 B. Monroe, 330 ; Matthias *v.*Shields, 2 Met. (Ky.), 553; Fulton *v.*Davenport, 17 Iowa, 404; Deirnan *v.*Fort Madison, 30 Id., 542. The classification for taxation being confided to legislative discretion, the courts cannot supervise its exercise : Com. *v.*Mann, 5 W. & S., 417; Sharpless *v.*Philadelphia, 9 Harris, 147. An act will not be declared unconstitutional unless the violation is clear, plain, and palpable, so as to leave no doubt: Speer *v.*School Directors, 14 Wright, 150.

It was not the design of the new constitution to abrogate existing laws. The schedule provides that all laws existing at its adoption not inconsistent with it shall continue, and the legislature at its first session shall pass laws necessary to carry it into effect. Constitutions as to their retrospective .effect are to be construed'as statutes: Cooley’s Const. Lim., 62; Price *v.*Mott, 2 P. F. Smith, 315 ; Shonk *v.*Brown, 11 Id., 327; Slack v. Maysville and L. R. R., 13 B. Monroe, 1.

Judgment was entered in the Supreme Court, February 23d, 1875.

Per Curiam :

Owing to the importance and the difficulty of the questions in this case it has been twice argued, and yet there is a difference of opinion among the members of the court, preventing a conclusion satisfactory, even to the larger number. The majority, however, unite in affirming the decision of the Court of Common Pleas, though not all for the same reasons. Hence no opinion is given, except that we all agree that the power to classify the subjects of taxation is not taken away by the new constitution. This is a matter in which there should be a resort to theGeneral Assembly to harmonize the legislation applicable to the city of Pittsburgh, in some form that will make it comport to the new constitution.

Decree affirmed with costs and appeal dismissed.